On 14 September 2017 Ofcom, the UK communications industry regulator, adopted new statutory guidelines (Penalty Guidelines) on how it would assess and determine the penalties (fines) payable by regulated communications companies who breach their obligations under the Communications Act 2003 (Act). The revised guidelines follow Ofcom’s June 2017 adoption of new guidelines for enforcement in regulatory investigations (Enforcement Guidelines) and procedures for investigating breaches of competition related conditions in Broadcasting Act licences (Broadcasting Investigation Procedures).

Although on their face the changes to the guidelines seem relatively minor, when considered against the background of (i) Ofcom’s increasingly pro-active enforcement policy; and (ii) the increased difficulty of challenging Ofcom’s decisions, following the 20 July 2017 change in the standard of review of decisions on appeal from an ‘on the merits‘ review to ‘judicial review principles‘, we expect the changes to make it easier for Ofcom to take action against regulated communications companies and more difficult for those companies to defend and appeal Ofcom’s decisions. As a net result, regulated communications companies need to take Ofcom enforcement action more seriously. Those companies are now financially incentivised to engage early with Ofcom and consider early settlement to secure a settlement discount, especially as they will find it more difficult to challenge Ofcom’s decisions on appeal. Continue Reading What is the impact of the new Ofcom penalty guidelines?

Ofcom published its annual Communications Market Report this week. This report provides a reference for industry, stakeholders and consumers across the sectors Ofcom regulates. A handy bite-size version of the report is available here.

This week heralded further progress for the European Digital Single Market strategy, with the online content portability regulation mentioned previously on this blog coming into force on 20 July 2017, following publication of this regulation in the EU Official Journal on 30 June 2017. The regulation itself sets out a number of key dates during next year and onwards for content providers and consumers alike to watch for. Continue Reading ‘Watch like at home’: dates worth watching for

Following the Government’s decision to include a revised data protection law in the Queen’s Speech last month, the House of Lords EU Home Affairs Sub-Committee reviewed the potential implications on national security, stability and public safety of the UK exiting the European Union without an agreement to ensure there is unhindered data flow between the two sides. The Committee issued a stark warning that it was “struck by the lack of detail” on how the Government would ensure that the UK data protection regime continues to allow data transfer with the European Union in a post-Brexit world.

In a judgment delivered on 14 June 2017, the Court of Justice of the European Union (CJEU) decided that making available a online sharing platform falls within the concept of “communication to the public” for the purposes of copyright law, and can therefore amount to infringement of copyright in protected works which are shared via that platform. This decision bolsters the ability of copyright owners to pursue the operators of such platforms, and to obtain relief against intermediaries (in particular ISPs) forcing them to block their users from accessing such platforms.

The immediate practical consequence of the CJEU’s decision is that the national courts are entitled to grant blocking injunctions against ISPs in order to block users from accessing TPB. This is plainly a positive outcome from the point of view of copyright holders, giving them stronger rights to restrict unauthorised distribution of their protected works. The generally pro-rightsholder approach of the CJEU in this case mirrors the recent efforts of the English courts to modernise its remedies in order to secure adequate protection against infringing activities, as reported in a previous blog post.